“Informational privacy is understood as a form of fraud for an individual (newlywed, job seeker, insured, etc.). Masking aspects of one’s private life would serve to conceal certain “defects” that, if revealed, would modify the conditions of the transactions they enter into with others (marriage, employment contract, insurance policy, etc.). In this way, Posner draws a parallel with the notion of hidden defect in commercial law. Privacy would be an illegitimate legal protection of practices based on deception by creating a rent for the benefit of individuals who benefit from a legally protected informational asymmetry.”
Privacy = hidden defect? This is what is implied in the above paragraph from the book Economics of Personal Data and Privacy. It describes the thesis on privacy of the American jurist Richard A. Posner, now a judge at the US Court of Appeals, which deserves to be discussed. For despite their excessiveness, these ideas have helped to shape the world we live in, particularly in the digital environment.
Privacy as deception and disguise
Richard Posner is one of the most eminent members of the Law and Economics movement. This doctrine is characterized by its desire to explain legal phenomena by means of the concepts and methods of economic science, in particular cost-benefit analysis. In this perspective, a rule of law is not worthwhile in itself, because it would be endowed with a binding force, but because it allows actors to reach an optimum of satisfaction. Conversely, they can choose – even if it means paying damages – not to respect a norm if it proves to be inefficient from an economic point of view (the “efficient breach” theory). As a result, the law dissolves into a “market of competing norms” (or forum shopping) from which actors choose to maximize their utility.
Posner also analyzes on an economic basis the problem of the Privacy Paradox, whereby individuals generally claim to value their privacy, but in practice behave quite differently. He explains that this is because we do not consider privacy to be a good in itself, but only recognize its “instrumental” value in terms of its usefulness for manipulating others.
Posner rejects any definition of privacy other than “hiding” and “withholding” information. It would encourage harmful activities such as deception and the building of a false reputation conducive to illegal activities, inhibit efficient decision making, and prevent the emergence of a market for personal data by increasing transaction costs.
For him the demand for privacy increases as people become more affluent because it has instrumental value to them. You want to control the information about yourself. It will allow you to make advantageous personal, professional and business transactions with other people. And probably because it’s not deeply rooted in us, it turns out that people, of course, value privacy because it’s nice to be able to hide the dark side of ourselves. But they don’t value it very much, and it shows in our behavior, in the way we give up our privacy for very small gains.
The “transparent human”
The 1977 article “The Right of Privacy” develops this point of view in detail, with a sharp critique of the 1974 Privacy Act. In it, Posner weighs two contradictory needs, that of privacy and that of prying, for the satisfaction of which individuals are prepared to bear costs. It is this “economist” prism that leads him to draw a parallel between privacy and the notion of latent defect in commercial law, in a particularly gloomy section:
“An analogy to the world of commerce may help to explain why people should not on economic grounds, in any event have a right to conceal material facts about themselves. We think it wrong (and inefficient) that the law should permit a seller in hawking his wares to make false or incomplete representations as to their quality. But people “sell” themselves as well as their goods […] everyone should be allowed to protect himself from disadvantageous transactions by ferreting out concealed facts about individuals which are material to the representations (implicit or explicit) that those individuals make concerning their moral qualities.”
For Posner, the market is necessarily “total”: it embraces all social relations that are comparable to commercial transactions taking place on a market by assimilating people to goods that are sold. It is therefore easy to understand why he uses the comparison between private life and “latent defects”. Posner considers that a customer who hides an illness from his insurance company or a fiancé who does not tell his future wife about his infertility become the equivalent of “defective products”. To protect privacy by law would be to impede the free play of the “social market” by rendering it inefficient, since individuals would then have to incur significant costs to obtain information about others.
These positions of Posner strangely echo two maxims commonly used to talk about digital privacy: “if it’s free, you’re the product” and “I don’t care about my privacy, because I have nothing to hide“. The “transparent human” he calls for are in fact “human products” exchanged on a market and they must therefore have “nothing to hide” to allow this social market to function with the greatest efficiency. This vision constitutes, in a way, the ultimate stage of the “transparency of information” which liberal theory makes a condition of the perfection of competition.
The ideal human, according to Posner…
The digital panopticon, incarnation of Posner’s dream
The comparison with the digital world makes sense, because although his article “The Right of Privacy” was written in 1977, long before the advent of the mainstream Internet, Posner takes into account the issue of media in his demonstration.
He explains the success of the celebrity press, in which he sees an answer to this “demand for indiscretion”, in a context where the costs of obtaining confidential information are high. But the advent of the Internet — and especially of social networks — is a way to realize the “panoptic society” that he calls for, since despite the rise in the standard of living, the costs to have information on others are drastically lowered, as soon as each one reveals them to his network of virtual “friends”. We return to the “village life” of traditional societies, but on a much larger scale.
Posner welcomes this situation because it tends to make individuals “transparent”, but also because it establishes new social norms that diminish the value individuals place on their privacy:
“If you deal online, you reveal enormous information to the vendor and then they exchange among themselves and if the government wants it they can get it easily. With one click purchasing […] they use this information to create a profile, a political or cultural profile of you. People tend to be willing to surrender privacy for quite modest gains, like the convenience of the one-click.
[…] There are some moves to create new privacy rights but it’s overwhelmed by the convenience of surrendering your privacy. And as I said, the fact that people surrender it for rather small gains is a sign that most people don’t really value it that much. Partly because it’s very much a relative kind of good. If everybody else is concealing a lot of information about himself then you’d be kind of a fool to have it all hang out, right? But as more and more people become transparent, that becomes kind of a social norm which you tend to conform to. Because people are very imitative of each other.
And of course privacy can be very dangerous obviously, if you’re a terrorist privacy is enormously important. So the more we think privacy as endangering us, that will reinforce these commercial incentives to surrender privacy.”
These few sentences summarize the ideology that has led to the progressive implementation of what Shoshana Zuboff and Aral Balkan call surveillance capitalism, a system in which large centralized private platforms build their business model on the massive collection of personal data while collaborating with governments to facilitate the implementation of security policies.
Limitation of consent in the name of human dignity?
In this section, I will talk mostly about the concept of Human dignity applied in the French law system. But you can find applications of this concept in other legal systems. (At the EU level, in Germany, Canada, India, South Africa, etc.) Also, the concept of Human dignity differs from one culture to another, and this is not meant to be a representation of Human dignity all over the world.
The concept of Human dignity which can be defined as follows: “(Human) dignity is the right of a person to be valued and respected for their own sake, and to be treated ethically.”. In application of this principle, child beauty pageants are forbidden in France because it harms the dignity of children. Same goes with the prohibition of dwarf-tossing even though the dwarfs themselves had filed an appeal to assert their right to consent to be thrown.
The respect of Human dignity acts as a safeguard. An individual cannot consent to go against their own dignity. It also relates to the idea that you have to protect people from themselves since with enough money, you can make most people do anything. Respect for Human dignity shall come before individual consent in all circumstances, to put limits on what can be bought from an individual.
What inspired me to write this article is to see how easy it is to make people consent to sell their data, even for very small gains. To which I would like to answer that it is time to react to this dangerous slide: the sale of an individual’s dignity . Privacy should never be something to sell. To enshrine this practice of selling personal data in a direct way is to create a world where poor and uneducated people would systematically sell their data, when only the rich and educated people could afford to have privacy. For me, this corresponds to a violent regression of Human dignity.
I can’t get used to this idea, since I want a world with better privacy for everyone. Moreover, we clearly have techniques in place that allow us to achieve certain results, such as personalizing ads, without directly collecting (and selling) personal data. Of course, data anonymization has a price, but is it so expensive to respect people? Can’t we afford to respect Human dignity? This is the challenge to design products that benefit the entire ecosystem without selling the dignity of our users, the one that eyeo tries to accomplish with Crumbs. This is a turning point not to be missed in order to avoid the triumphant victory over surveillance capitalism.
I am proud to be trying to change the world. But to do that, you really have to deconstruct the preconceived ideas in which the world we live in is entrenched. This requires a great deal of vigilance in order not to fall into the trap of convenience.
Protect your privacy at all costs, and if you don’t do it for yourself, do it for others.